Nazir - Daf 31

• Machlokes if הקדש בטעות is hekdesh

The opening Mishnah of the fifth Perek states: Beis Shammai say: הקדש בטעות הקדש – hekdesh made in error is still hekdesh. Beis Hillel say it is not hekdesh. The first example given is: אמר שור שחור שיצא מביתי ראשון הרי הוא הקדש – One who said, “The black ox, which will leave my house first, is hekdesh,” ויצא לבן – and instead a white ox left first, Beis Shammai say it is hekdesh, and Beis Hillel say it is not. The Gemara explains Beis Shammai’s source: דילפינן תחלת הקדש מסוף הקדש – Because we derive original hekdesh from secondary hekdesh (meaning temurah, where one animal is substituted for an animal of hekdesh, and both become kadosh). מה תמורה אפילו בטעות – Just as temurah is effective even in error (a derashah teaches that when one substitutes a different animal than he intended, it is still effective), אף הקדש אפילו בטעות – so too original hekdesh is effective even in error. Beis Hillel contend that an original creation of hekdesh cannot be derived from a transfer from an existing hekdesh. Although the Gemara will explain our Mishnah differently, it will later prove that Beis Shammai definitely do hold that erroneous hekdesh is effective, and Beis Hillel disagree.

• Rav Pappa’s interpretation: the first black ox to leave

The Gemara objects that our Mishnah cannot be compared to temurah made in error, because his term, “the black ox which will leave first,” was not fulfilled at all (since a white one left first). This is akin to one who declared temurah should take effect at midday, which certainly does not take effect until the prescribed time. Therefore, Rav Pappa interprets our Mishnah differently: לכך נאמר ראשון, לכשיצא ראשון – This is the purpose “first” was said: meaning when it leaves first from among the black oxen (Beis Hillel do not agree that this was his intent). According to Rav Pappa, "הקדש בטעות" does not refer here to erroneous hekdesh, but to an unclear declaration that is reinterpreted. Rav Pappa also understands that Beis Shammai say it is the first black ox to leave which is hekdesh, as opposed to the first understanding, that it was the white ox (which actually left first) which is hekdesh. According to the Rosh, although the Gemara proves afterwards that Beis Shammai do hold erroneous hekdesh is effective, Rav Pappa still maintains that it cannot be the explanation for our Mishnah because of the Gemara’s question above.

• If a person is מקדיש בעין רעה

Abaye explain that our Mishnah refers to one who said after oxen left his house, “The black ox, which left first, is hekdesh,” mistakenly thinking it was his black ox. Upon hearing it was the white one, he said that had he known as much, he would have declared the white one hekdesh. The Mishnah is thus a true case of erroneous hekdesh. The Gemara proves from the second case (that a presumed gold dinar turned out to be silver) that כי מקדיש בעין רעה מקדיש – when one is makdish, he is makdish stingily, therefore it is reasonable that if he would be makdish a gold dinar, he would be satisfied being makdish a silver one. Although the third case discusses a presumed barrel of wine which was discovered to be oil, and oil is more valuable (so we should not accept that he would be willing to be makdish the oil), בגלילא שנו דחמרא עדיף ממשחא – it was taught regarding Gelilah, where wine is more valuable than oil. Our Mishnah proves, then, that white oxen are less valuable than black ones. Rav Chisda, who said that white oxen are more valuable, was referring to Carmanian oxen.